Long before there was Trump, there were tangles over judicial power

The Constitution is not clear about whether the court could declare an act of Congress or of the executive branch to be unconstitutional. That was left to be determined in the early days of the American republic.

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February 28, 2017

By Randy Dotinga

Donald Trump took only days to begin butting heads with federal judges, and he seems likely to tangle with the highest court in the land. Like presidents before him, Trump may find himself wishing that the Supreme Court wasn't so, well, supreme.

But the court didn't always pack a punch. In the early years of the American republic, "it was not clear how strong or powerful the Supreme Court was or would be," says historian James F. Simon, author of 2001's What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States.

In fact, he says, the Constitution didn't say the court "was the final word." Even if the court declared itself powerful, it wasn't clear if presidents or Congress would listen to it. The court, after all, oversees bailiffs, not soldiers.

In an interview with the Monitor, Simon talks about the early debate over the court's supremacy, the conflicting visions of a president and a chief justice, and a good reason why Trump may fail to intimidate federal judges.

Q: Why wasn't the role of the Supreme Court more defined in the early days?

The Constitution is not clear about whether the court could declare an act of Congress or of the executive branch to be unconstitutional. That was left undefined.

Q: What was the court supposed to do if it didn't get to declare laws to be unconstitutional?

It wasn't clear what its role was except to interpret the laws. People like Thomas Jefferson, who was a lawyer, thought the Congress and the president could also do that. They were both seen as the political branches of government, and they held the instruments of power.

As Alexander Hamilton wrote in the Federalist papers, the judiciary is the least dangerous branch because it is has neither the power of the sword nor the purse. They have no army, no way to enforce their decisions. They have to be accepted because they are seen to be reasonable and correct.

Q: Why did Jefferson oppose a powerful role for the court?

He was the populist of his day. He believed the people should rule through their elected representatives. But the Supreme Court is not elected. Justices are appointed, and they serve for life.

Q: How did Chief Justice John Marshall fit into all this?

He's known as the greatest chief justice of American history. His great contribution to the nation and to constitutional law was that he made the court a co-equal branch of government not just in name but in fact.

He believed that if you did not have a strong federal government, federal judiciary and president, then the nation would fall apart thanks to states' rights.

He was very much for the union. Jefferson was too, but he thought it was very important that the states had an equal standing with the federal government. Marshall thought the federal government must stronger than the states.

Q: Jefferson tangled with Marshall in the famous case of Marbury vs. Madison. The case hinged on an obscure legal dispute but is important because it declared that the Supreme Court could declare an act of Congress to be unconstitutional. How did Jefferson react?

He didn't actually say anything in public even though he thought Marshall was wrong.

He had more important things to do.

Q: Jefferson could have objected and challenged the court, potentially changing history, or ignored the precedent about the court's powers. Why didn't he?

Jefferson was a very careful and calculating president, and he didn't feel the need to comment on everything that aggravated him. He was playing the long game and thought the better part of valor was prudence in this case.

Even when he was the ex-president and Marshall kept writing these decisions which gave more power to the federal government and federal judiciary, Jefferson only objected through a surrogate.

Q: Could Jefferson have tried to blatantly manipulate the court, as when Franklin Roosevelt tried to stack it to get his way?

He would not want to do anything that was patently unconstitutional. The only constitutional way that the president can affect the court is through nomination of a justice, and he'd have to wait for a vacancy.

The problem for him was that Marshall was such a charismatic and powerful chief justice that the appointed justices usually agreed with Marshall and not with Jefferson.

Q: What's the legacy of this early battle over the Supreme Court's powers?

Through a series of decisions, Marshall carefully and brilliantly enhanced the prestige and power of the court and of federal judges.

When you look at it today, you see a Supreme Court which really is independent of both Congress and the president.

Q: What does that mean for Trump as he tries to run the show?

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Federal judges have lifetime tenure. They're not going be intimidated.

Randy Dotinga, a Monitor contributor, is immediate past president of the American Society of Journalists and Authors.

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